Scottish Court of Session Decisions

Subject_1 DECISIONS OF THE LORDS OF COUNSEL AND SESSION, COLLECTED BY SIR JAMES BURNETT, LORD MONBODDO.

Kincaid
v.
Gabriel Napier

Date: 5 February 1752

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[Elch. No. 14, Superior and Vassal.]

The question here was, How a vassal holding of a subject-superior, who himself also held of a subject, should be entered? What made the difficulty was, that the immediate superior was an apparent heir, who being charged by the vassal to enter him, in terms of the late statute, renounced to be heir. The question was, What was next to be done, and whether upon the forementioned statute a charge could be directed against the next superior? Lord Elchies was of opinion that the statute related only to the case where the immediate superior was himself entered, and was intended to supply the place of the former practice of running precepts; and he thought if the immediate superior, in such a case, refused, there was no remedy by the statute other than to denounce and apprehend the person of such superior, because he thought the statute only gave warrant for a charge against one superior; but he said the Lords might supply this defect in the statute, and upon the immediate superior's refusal might authorise a second charge against the next superior, in the same manner as their predecessors were in use, in the case of apprisings, to grant a second charge against the mediate superior upon the disobedience of the first: but he said he thought the act did not at all relate to the case where the immediate superior was not entered, which still stood upon the foot of the Act 57, anno 1474, which directed a charge in such a case against the superior to enter himself within forty days, and in case of his disobedience the practice has been to bring a declarator of tinsel of the superiority against him, in which the next superior was called, and a conclusion against him to enter the vassal. That this being the case, if their Lordships had a mind so far to enlarge the benefit of the late statute, as to extend it to a case to which it did not at all belong, he thought they ought to do it by way of regulation and act of sederunt, not by way of judgment betwixt the present parties.

The Lords, however, by plurality of votes, allowed the charge against the mediate superior to go out.